Condom Use, Viral Load and the Type of Sexual Activity as Defences to the Sexual Transmission of HIV
| Date | 01 April 2013 |
| Published date | 01 April 2013 |
| DOI | 10.1350/jcla.2013.77.2.832 |
| Author | David Hughes |
| Subject Matter | Article |
Condom Use, Viral Load and the
Type of Sexual Activity as
Defences to the Sexual
Transmission of HIV
David Hughes*
Abstract This article considers the position regarding the criminal trans-
mission of HIV in English and Canadian law. It considers the use of
condoms, viral loads and types of sexual activity and whether they can be
used as defences in such cases. The article will look at the current position
in England and also focus on recent decisions that have originated from
the Canadian courts. It is argued that the recent Canadian Supreme Court
judgment of R v Mabior is not in the public’s interest and that the position
should be that of the cases that were decided before that decision. It is also
argued that the defences regarding the criminalisation of the sexual
transmission of HIV are in need of a statutory footing.
Keywords HIV transmission; Defences; Canada; Viral load;
Condoms
In England an individual who is HIV+ and who has consensual unpro-
tected intercourse with another person can be prosecuted under s. 20 of
the Offences Against the Person Act 1861. He1will be guilty of the
offence if he recklessly transmits HIV to an unsuspecting complainant. If
the complainant consents to unprotected intercourse and has knowl-
edge of the defendant’s HIV status, it will act as a defence and the
defendant will be able to avoid liability.2The statistical probability of
transmission through safe sex, the advancement of anti-retroviral medi-
cation, and the type of sexual activity signifies that there are more
circumstances where the defendant should not be accountable for his
actions. Whether condom use, viral load and type of sexual activity will
negate recklessness or act as a defence is debateable, but for present
purposes it is proposed that they will be a defence and the defendant will
be excused if he took the reduced risk and did so with the necessary
awareness. It is submitted that these are defences of ‘reasonable precau-
tions’3as the defendant has attempted to reduce the risk of transmission
by participating in certain types of conduct and that that risk was a
reasonable to take.
* Senior Lecturer in Law, Teesside University; e-mail: d.hughes@tees.ac.uk.
1 He includes she.
2R v Dica [2004] EWCA Crim 1103, [2004] 3 All ER 593; R v Konzani [2005] EWCA
Crim 706, [2005] 2 Cr App R 14.
3 K. J. M. Smith, ‘Sexual Etiquette, Public Interest and the Criminal Law’ (1991) 42
NILQ 309 at 328.
136 The Journal of Criminal Law (2013) 77 JCL 136–150
doi:10.1350/jcla.2013.77.2.832
To continue reading
Request your trial